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Brownfields - Hearing Report, October 15, 1997

Hearing Report, October 15, 1997


In the Matter

- of -

Proposed Adoption of New Subpart 375-4 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the
under the Clean Water/Clean Air Bond Act of 1996

Susan J. DuBois
Administrative Law Judge

October 15, 1997



The New York State Department of Environmental Conservation (the "Department") scheduled a series of public hearings to provide an opportunity for comment on proposed regulations for the Environmental Restoration Projects aspect of the Clean Water/Clean Air Bond Act of 1996. This proposed regulation concerns State funding to eligible municipalities to carry out projects to investigate or to remediate hazardous substances located on property owned by the municipality. The regulation is also know as the "brownfields" Bond Act regulation. It would be Subpart 375-4 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Subpart 375-4).

Notice of the hearing was published in the Department's Environmental Notice Bulletin and in the New York State Register, both on July 16, 1997.

The amendments were proposed pursuant to Environmental Conservation Law ("ECL") Article 56, Titles 1 and 5 (Implementation of the Clean Water/Clean Air Bond Act of 1996) and ECL Section 3-0301.2 (General Functions, Powers and Duties). Pursuant to ECL Article 8 (State Environmental Quality Review), the Department determined that the proposed regulation would not have a significant impact on the environment.

Legislative hearings on the proposed amendments were held before Susan J. DuBois, Administrative Law Judge, on September 8, 9, 10, 16 and 17, 1997, in Albany, Farmingdale, New York City, Cheektowaga and Syracuse, respectively. The Department Staff was represented at the hearing by Robert Cozzy, P.E., of the Division of Environmental Remediation. A total of 29 people attended the hearing sessions, two of whom presented statements.

The hearing notice stated that written comments could be filed until September 22, 1997. Five written comments were received.

Summary of Comments

Annette M. Barbaccia, Director of the Mayor's Office of Environmental Coordination, City of New York, requested that the State change the formula under which municipalities would reimburse the State when restored brownfields sites are sold, so that the reimbursement to the state of half the profits is eliminated or reduced. The City recommended that there be a definition of "economically distressed area" and that the definition of low income housing be changed so that more projects would be eligible for the program. The City recommended that municipalities be allowed to receive Bond Act monies for sites which they had leased and which may have been contaminated by the former tenants, as long as a good faith effort is made to recover costs from responsible parties. The City also recommended changes to allow for more flexible deadlines for starting field work and for approvals by authorized officials of municipalities in addition to the governing bodies. The City requested clarification of the project ranking system, the standards for cleanup, and the hierarchy of remedial technologies.

Bruce Musaccio, Village Attorney, Village of Gowanda described a site in the Village that contained a landfill from a former glue factory, plus scrap metal and construction debris from a company that owned the land after the glue factory. Mr. Musaccio stated that the Village hopes there will be a combination of funding in the future that will support cleanup of sites like this.

John Stouffer, Legislative Director, Atlantic Chapter of the Sierra Club expressed general support for the proposal but described specific concerns about two provisions which he stated may erode the principle that polluters should pay for cleanup of toxic contamination, about certain aspects of the public participation process for brownfields projects, and about the relative weight of criteria in the project ranking system.

Susan L. Quiñones, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, Albany, submitted comments on behalf of American International Group (AIG). AIG proposed that the list of eligible costs in proposed 6 NYCRR 375-4.7 be expanded to include those costs which are necessary to procure insurance to ensure the completion of the Department approved remediation work plan by covering remediation cost over-runs and other allocated fund deficiencies. AIG stated that because of the unpredictable nature of contamination, a contractor could inadvertently underestimate the cost of remediation, and that the risk of this could deter municipalities from undertaking brownfields projects.

Jody Kass, Director of Regulatory Initiatives, New York City Partnership, stated that the Partnership is a nonprofit organization that works to create opportunities for private investment in the renewal of low income communities in New York City. The Partnership stated that the provision for waiving the payback of Bond Act money to the State for brownfield projects which are used for affordable housing or are located in low income areas may not be effective as it is presently written. The Partnership submitted proposed revisions concerning the definition of "sales price," the definition of "low and moderate income," and the criteria for identifying economic development areas in which the waiver would apply.

Anne Rabe, Executive Director, Citizens Environmental Coalition, stated that the brownfields portion of the Bond Act intended that brownfields projects be consistent with the State superfund remedial process and that in order to specify this intention, references to ECL Section 27-1313 should be added and certain definitions should be made consistent with 6 NYCRR Subpart 375-1. CEC stated that the project ranking system should be changed to avoid spending the program's funds on sites where other funding is available (particularly funding from the parties responsible for the contamination). CEC also recommended that the regulations provide for citizen participation earlier in restoration projects, and include language regarding a "technical assistance" provision in the Bond Act which would require a municipality to hire an independent consultant to assist community members in reviewing restoration projects.

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